Whiplash

If you’ve been trying to keep up with the news at the intersection of law and politics for the last 48 hours, you undoubtedly have some whiplash. It’s not technically the Trump administration yet, but it has that old, familiar, and distinctly unpleasant feel to it.

Here’s a top-level look at developments you should be aware of, in an effort to help us focus on what’s important without getting overwhelmed, in the style of the forthcoming Democracy Index.

Certification of the Election Results

Outside of the Capitol on Monday, there were no crowds preparing to overrun Congress like there were in 2020. No chants of “Hang Mike Pence.” No “Camp Auschwitz” tee shirts. It’s not the passage of four years that makes a difference, it’s the outcome of the 2024 election. There is plenty of reason to believe it would not have been a peaceful transfer of power had Kamala Harris won. We should be clear about that. One party plays by the rules. One party values democratic principles. Only one.

Harris was addressed by Senator Amy Klobuchar as “Madame President” as she performed her role as President of the Senate and oversaw the confirmation of the vote for her opponent, Donald Trump.

After it was over, she issued a statement saying that she took her oath to support and defend the Constitution seriously. Even though you could see that she performed her duties with a heavy heart, she was unflinching. We would have had a splendid president in Kamala Harris, a president who believes that “America’s democracy is only as strong as our willingness to fight for it — every single person, their willingness to fight for and respect the importance of our democracy. Otherwise, it is very fragile and it will not be able to withstand moments of crisis. And today, America’s democracy stood.”

Small acts of courage. That is what is going to keep us moving forward.

Proud Boys Leader Wants a Pardon

Former Proud Boys leader Enrique Tarrio, who was sentenced to serve 22 years in federal prison for seditious conspiracy, chose the anniversary of his crimes to ask Donald Trump for a pardon.

No word yet on whether Trump intends to issue a pardon for Tarrio.

I wrote about the possibility of pardons for the January 6 defendants in this piece for the Brennan Center. I hope you’ll jump over and read it when you’re done with the newsletter tonight. Pardons for January 6 defendants, and especially for people convicted of violent crimes like Tarrio, would be a misuse of the unrestricted power the Founding Fathers gave presidents to grant pardons. Despite the rampant whataboutism circulating on right-wing social media, Biden’s sentence commutations—which means converting death sentences to life in prison—for some death row inmates does nothing to justify releasing inmates convicted of January 6 offenses from prison.

My conclusion: “By advertising his willingness to pardon the people who supported him rather than the Constitution, Trump is sending a message to the people he is counting on to support him this go-round: If they protect him, he will take care of them. It’s a message fit for a would-be authoritarian.”

Trump Tries to Avoid Sentencing in Manhattan

Trump doesn’t want to be sentenced on Friday for his fraud convictions over the payment of hush money to Stormy Daniels. It’s not the sentence that’s the big issue—the Judge has already said he doesn’t intend to impose custody, Trump wants to find a way to keep the conviction from becoming final and irreversible. He wants to get the scarlet letter off of his chest.

Preventing the sentencing hearing from happening matters because it will trigger the appellate process. If he’s sentenced, Trump will have 30 days from that date to take an appeal. Once the appeal is concluded, the conviction is final. Trump is hoping to delay sentencing so that process won’t kick in, giving him four years to come up with a strategy, while he holds the levers of power, for avoiding the permanent designation: convicted felon.

So, after Judge Merchan refused to reconsider holding the sentencing hearing Friday, Trump asked the First Division (the first tier appellate court in New York state) to stay sentencing on Friday. An appellate judge told him no, too.

Trump argued that pre-presidential and I’m-almost-president immunity mean he can’t be sentenced. But there is no law—not in the Constitution, statutes, or judge-made—that establishes either theory. It’s a doctrine made out of whole cloth by Trump’s lawyers. During the hearing, the Judge asked: “Do you have any support for the notion that presidential immunity extends to Presidents-elect?” Trump's lawyer, Todd Blanche, whom Trump says he will nominate for the number two role at DOJ, answered that he didn’t have any, falling back on the excuse that there had never been a case like this before. Trump’s argument is pretty much, “you can’t sentence me because I said so.”

The issue now is whether, in the time left to him, Trump can find an appellate judge in state or federal court who will help him delay the proceedings. Once he’s sentenced, it’s unlikely he’ll be able to short circuit appellate proceedings. The reasons offered for rejecting criminal prosecutions of presidents are to avoid distracting them from their duties and to avoid reputational damage to the leader of the free world. While they may apply during the trial phase of proceedings, they lack similar force during an appeal, and it’s likely the New York courts will permit the case to proceed.

Giuliani in Contempt

In fitting punctuation to the day on Monday, Rudy Giuliani was held in contempt by a federal judge in New York. Giuliani is doing everything he can to avoid paying Georgia election workers Ruby Freeman and Shaye Moss the $146 million defamation judgment he owes them. Giuliani called the proceedings “lawfare” and claimed he was being unfairly targeted, quite an echo from the 2020 election on the January 6 anniversary.

Jack Smith’s Report

Understanding that release of Special Counsel Jack Smith’s final report is imminent, Trump, or rather his two former co-defendants in the classified documents case, chose to go to Judge Aileen Cannon in Miami to keep it from happening. Cannon, who has never been overly solicitious of the government in these proceedings, ruled in Trump’s favor before the government had the opportunity to weigh in.

She not only ruled that the government couldn’t release the part of the Special Counsel’s report on the case in front of her, she also seems to think she can prevent them from releasing the part of the report that is about the January 6 case—a case that was never in front of her.

But here’s the problem: Judge Cannon already dismissed the case against Trump and his co-defendants based on his lawyers’ argument that the Special Counsel’s appointment was unconstitutional. That means she no longer has jurisdiction over the case, and she can’t issue an order to anyone regarding it. Her order here shouldn’t have any force.

Defense lawyers may have belatedly seen this problem coming. They filed a duplicative request to prevent the release of the report with the Eleventh Circuit. Jurisdiction, if it exists anywhere, is there, because Jack Smith appealed Judge Cannon’s dismissal order against him to that court, and although the appeal as to Trump is now dismissed, it’s still in place as to the co-defendants.

In a virtual acknowledgement that Judge Cannon lacks jurisdiction to issue the order she entered, the co-defendants filed a supplemental brief with the Eleventh Circuit this afternoon, asking the Court to refer the matter back to Judge Cannon “to assure that no question remains as to the authority of the district court to resolve the pending motion in that Court.”

It’s up to the Eleventh Circuit to act now.

Trump

Trump had a long ramble Tuesday afternoon that would be Grandpa Simpson level parody if this wasn’t the man who is about to become the president of the United States. Among other things, he refused to rule out using military force to retake the Panama Canal and announced a multibillion-dollar plan to build data centers in multiple states bankrolled by investors from Dubai.

On Christmas Eve when Trump talked about taking over Greenland, the Panama Canal & even Canada, I took him seriously & wrote about it.

That he was back at it today suggests that this isn’t just a bright, shiny object we can ignore. Let’s not do that just yet. But let’s understand exactly what it is and why it matters.

The concern isn’t that Trump will actually invade Greenland (at least not yet). It’s the damage he’s capable of doing to our relationships with key allies when he continues to talk smack like this. It’s lawlessness, it’s the talk of authoritarians, not American presidents, and that means we need to keep an eye on it.

There’s a common theme running through all of these events: Trump’s cavalier lawlessness and his desire to have the powers of an authoritarian leader. That’s what we should be paying attention to. Many people are turning a blind eye to Trump’s behavior at this point. But democracy really could die in darkness. We have to make sure the spotlight stays on Trump.

We’re in this together,

Joyce